The textual warnings in this case provide undisputed factual information about the health risks of using tobacco products. Similarly, for the reasons outlined above, there are myriad graphic images that would also provide such factual information. The health risks of smoking tobacco have been uncovered through scientific study. They are facts. Warnings about these risks—whether textual or graphic—can communicate these facts. In contrast, what constitutes a sexually explicit video game is a matter of personal taste and sexual morals that is necessarily based on opinion, as enshrined in the very definition of "sexually explicit" thatBlagojevich examined. A required disclosure announcing that the game is sexually explicit communicates the government’s opinion that the game is sexually explicit. Blagojevich and the standards it articulates are inapplicable here.

The dissent argued that "[the government] has not adequately shown that the inclusion of color graphic warning labels is a properly or reasonably tailored response to address that harm. It appears, from the government's own evidence, that the color graphic warning labels are intended to create a visceral reaction in the consumer, in order to make a consumer less emotionally likely to use or purchase a tobacco product." In response to the dissent's point, the majority countered, "Facts can disconcert, displease, provoke an emotional response, spark controversy, and even overwhelm reason, but that does not magically turn such facts into opinions."

Earlier this month, a judge for the US District Court for the District of Columbia ruled that the FDA regulation recommending warning labels is unconstitutional [JURIST report], issuing a permanent injunction. US President Barack Obama [official website] signed [JURIST report] the FSPTCA into law in 2009, granting the FDA certain authority to regulate manufactured tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The proposed implementation of new tobacco warning labels has also drawn criticism abroad. In Australia, Philip Morris hasfiled a complaint [JURIST report] to block new graphic warning label requirements [AUS Health Dept. backgrounder] recently enacted in that country.

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